The increased use of smartphones and improved internet penetration have seen an increase in the use of mobile applications (mobile apps) worldwide.
The development of apps related to financial technology (Fintech) has had a positive impact on the financial services industry in Kenya and the region.
Kenya, being the origin of mobile money thanks to mobile money services such as M-PESA, is expected to continue to play a leading role in this space.
Mobile apps are often created by software developers on behalf of their clients. It is critical that developers or owners of mobile apps ensure that their legal rights are protected.
As such, the mobile app software development agreement entered into between the software developer and the client should be clear on who owns the intellectual property rights in the mobile app.
Where a client intends to ensure that its ideas are kept confidential, it may require the developer to execute a non-disclosure agreement.
In addition, where an employee develops a mobile app, the employer should ensure that the employment contract contains a clause stipulating that all intellectual property developed by the employee during the course of employment will be assigned to the employer.
Where the developer is a corporate entity such as a company, deeds of assignment should also be executed by individual developers assigning all rights to the client. Where appropriate, the developers should also waive their moral rights in the mobile app developed.
The waiver of moral rights would for instance ensure that the developers do not object to treatment of the mobile app in ways that they would consider to be derogatory.
Once a mobile app has been developed, it is important for the mobile app owner to consider the various forms of protection available. Protecting the mobile app will enable the owner to enforce its rights in the app in the event that they are infringed by third parties.
In this regard, the four main forms of legal protection that may be considered are Trade marks, Copyright, utility models and patents.
In addition to the measures that could be taken to protect legal rights in a mobile app, the owner of an app should have in place terms and conditions setting out when and how third parties may use the software.
The terms and conditions should also contain appropriate limitations of liability arising from the use of a mobile app.
They set out the terms under which the Services operated by a business startup (the web sites, portals together with the content, search facilities, directory services, e-mail, forums, expert, blogs, newsgroups and other services provided by a business startup from time to time and to which additional terms and conditions may apply) are made available to you.
These Terms and Conditions apply to Members, Advertisers, Subscribers to any Services provided by the business startup and to visitors. By accessing any of the Services whether as a Member, a Subscriber or a visitor you agree to be bound by the terms and conditions.